Section 361 BNSS: Procedure in cases which Magistrate cannot dispose of (Formerly Section 322 CrPC)

Section 361 of Bharatiya Nagarik Suraksha Sanhita, 2023: Procedure in cases which Magistrate cannot dispose of

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to warrant a presumption—

(a) that he has no jurisdiction to try the case or commit it for trial; or

(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district; or

(c) that the case should be tried by the Chief Judicial Magistrate, he shall stay the proceedings and submit the case, with a brief report explaining its nature, to the Chief Judicial Magistrate or to such other Magistrate, having jurisdiction, as the Chief Judicial Magistrate directs.

(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Inquiry Sec 2(1)(g) Investigation Sec 2(1)(h) Victim Sec 2(1)(w)

Legal Commentary & Landmark Judgments: Section 361

Section 361 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 322 of the CrPC, 1973) dictates the procedure when a Magistrate cannot dispose of a case due to lack of territorial or pecuniary jurisdiction, or because the case should be tried by another Magistrate.

Lack of Jurisdiction Finding: If at any stage of inquiry or trial, the Magistrate considers that they have no jurisdiction to try the case or commit it for trial.
Transfer to Chief Judicial Magistrate: The Magistrate shall stay the proceedings and submit the case with a brief explanatory report to the Chief Judicial Magistrate.
CJM's Remedial Powers: The CJM may either try the case themselves, transfer it to another competent Magistrate, or commit it for trial.

Key Landmark Precedents:

Chhotey Lal v. State of U.P., (2006) 6 SCC 327: The Supreme Court noted that when a Magistrate discovers that they lack subject-matter or territorial jurisdiction, staying proceedings and referring to the CJM under Section 322 CrPC is the only legal course.
In re: K.V.R.S. Mani, AIR 1951 Mad 810: Held that proceeding with trial after realizing absence of jurisdiction is a serious illegality that vitiates the entire proceeding.

Courtroom Practice & Strategic Litigation Guidance:

If investigation reports or cross-examination reveal that the offence occurred entirely outside the local jurisdiction of the court, move an application under Section 361 urging the Magistrate to stay proceedings and refer to the CJM.